Subai Shia Majlise Auqaf vs Savitri Devi

Ramratna Singh and Shambhu Prasad Singh, JJ.—This appeal is directed against an order of the Additional District Judge of Patna reversing an order of the Subordinate Judge after holding that Execution Case No. 62 of 1960 was barred by limitation and thus allowing an application u/s 47 of the CPC filed by the respondent. The appellant obtained a decree on the 16th November, 1955 with costs against the respondent from the court of the Subordinate Judge at Patna. The respondent preferred a first appeal to the High Court against the decree on the 19th March, 1956. For failure on the part of the appellant in the first appeal to pay the printing cost that appeal was dismissed for default on the 21st March, 1957. Thereafter the present appellant-decree holder filed an application for execution which was registered as Execution Case No. 16 of 1960, on the 21st March 1960, for realisation of the cost allowed by the decree. Notice under Order 21, Rule 22 of the CPC was issued on the respondent on the 25th April, 1960. The notice was returned un-served and on the 26th May, 1960 the decree-holder was directed to file the requisites for fresh service of notice by the 3rd June, 1960, on which date time was again granted to file the requisites by the 14th June, 1960. On this date too the decree-holder did not take any step and the execution case was dismissed for default. The second application for execution, which was numbered as Execution Case No. 62 of 1960, was filed on 14-9-60. After service of notice the respondent judgment debtor filed the aforesaid application u/s 47 of the CPC asserting that the execution application was barred by time. In this connection, the respondent also raised a question that the three years'' period of limitation should be counted from the date of the decree of the trial court and not from the date of the dismissal of the first appeal for default in the High Court. Both the courts below rejected this contention and held that the period of three years'' should be counted from the date of dismissal of the first appeal in the High Court, i.e. from the 21st March, 1957. The learned Subordinate Judge further held that the first execution was a step in aid of execution, and, therefore, the second execution was also within time. The learned Additional District Judge, however, was of the view that failure on the part of the decree holder to comply with the order of the executing court requiring him to file requisites for notice under Order 21, Rule 22 of the Code must be construed to mean that there was no application to the court for taking any step in aid of the execution, and, therefore, Execution Case No. 16 of 1960 would not be of any avail to extend the period of limitation. Hence, the decree-holder preferred this appeal which came up before a learned single Judge of this Court who by his order dated the 18th October, 1963, referred the appeal to a larger Bench on account of a conflict in two Bench decisions of this Court, namely, Ragho Prasad Singh and Others Vs. Jadunandan Prasad Singh and Others, and Thakur Hirday Narayan Singh Vs. Rao Maheshwari Prasad Singh, in respect of the question whether an order dismissing an appeal for non-payment of printing cost was a final order within Clause (2) of Article 182 of the Indian Limitation Act, 1908.

Mr. S.P. Srivastava who appeared for the respondent challenged the finding of both the courts below on the question whether the order dismissing the first appeal in the High Court for default was a final order within the meaning of Clause (2) of Article 182 of the Indian Limitation Act. Article 182 lays down that a decree of a civil court has to be executed within a period of three years from the date of the decree or as provided under Clause (2) that is, where there has been an appeal, the date of the final decree or order of the appellate court, or the withdrawal of the appeal, or as provided in Clause (5), namely, where the application next hereinafter mentioned has been made, the date of the final order passed on an application made in accordance with law to the proper court for execution or to take some step in aid of execution of the decree or order. According to Clause (2) of the Article, the period of three years would be counted from the 21st March, 1957, if the order of the High Court dismissing the first appeal for default is deemed to be the final decree or order. Mr. Srivastava relied on the Bench decision of this Court in the case reported in Thakur Hirday Narayan Singh Vs. Rao Maheshwari Prasad Singh, in support of his argument that the order of the High Court dismissing the first appeal for default on 21st March, 1957, was not a final order, and, therefore, the period of three years for the first execution ought to be counted from the 16th March, 1955, the date of the decree of the trial court". A view contrary to that was taken in the case reported in Thakur Hirday Narayan Singh Vs. Rao Maheshwari Prasad Singh, was taken in the case reported in Ragho Prasad Singh and Others Vs. Jadunandan Prasad Singh and Others, . Both these decisions as well as some other decisions including a few decisions of the Privy Council were considered by a Bench of this Court in the case of Sashi Bhusan Rai v. Bhuneshwar Rai AIR 1955 Pat 125. Following two Privy Council decisions, namely, AIR 1932 165 (Privy Council) and AIR 1933 68 (Privy Council) , it was held by their Lordships that, when an order is judicially made by an appellate court which has the effect of finally disposing of an appeal, such an order gives a new starting point for the period of limitation prescribed by Article 182(2); the order of the appellate court granting the appellant certain time to deposit the printing cost is a judicial order, and the further direction that if the printing cost was not deposited within the time allowed, the appeal would stand dismissed without further reference to the Bench, is not only a judicial order, but an order which, if not complied with, finally disposes of the appeal and furnishes a fresh starting point of limitation. In the case before their Lordships the first appeal had been dismissed by a Bench of the High Court on appellant''s failure to deposit the printing cost, within the time allowed by the court, as in the instant case. Their Lordships further observed that the decision in the case of Thakur Hirday Narayan Singh Vs. Rao Maheshwari Prasad Singh, could no longer be regarded as a good law in view of the Privy Council decision in the case of AIR 1932 165 (Privy Council) . There can be no question about the correctness of this observation. It is apparent from the judgment in Thakur Hirday Narayan Singh Vs. Rao Maheshwari Prasad Singh, that the Privy Council decision, in the case of AIR 1932 165 (Privy Council) was not brought to the notice of their Lordships who decided the case, obviously because the case of AIR 1932 165 (Privy Council) had, not been decided by the Privy Council at the time of the decision by this Court in the case of Thakur Hirday Narayan Singh Vs. Rao Maheshwari Prasad Singh, . In this view of the matter, there is no question of resolving any conflict between the decisions in the cases of Thakur Hirday Narayan Singh Vs. Rao Maheshwari Prasad Singh, and Raghu Prasad Singh v. Jadunandan Prasad, Singh AIR 1932 Pat 6. Consequently, in view of the decision of the Privy Council and the Bench decision of this Court reported in Sashi Bhusan Rai Vs. Bhuneshwar Rai and Others, it must be held that in the instant case the order of the High Court, dismissing the first appeal for default on the 21st March, 1957, was a final order and the period of three years for the purpose of execution must be counted from that date. If that be so, then Mr. Srivastava concedes that the first Execution Case No. 16 of 1960 was within time.

Mr. Sarwar Ali, who appeared for the appellant, challenged the finding of the lower appellate court that nothing in Execution Case No. 16 of 1960 amounted to any step in aid of execution, and, therefore, Clause (5) of Article 182 would not save the limitation. It will be noticed that Clause (5) of this Article contains two alternatives, (i) the date of the final order passed on an application made in accordance with law to the proper court for execution, and (ii) the final order passed on. an application made in accordance with law to the proper court to take some step in aid of execution. In view of our finding in the preceding paragraph, the limitation is saved by the first alternative. It will be recalled that the first application for execution was filed in time and Mr. Srivastava did not dispute the fact that that application was in accordance with law and had been made to the proper court. If, therefore, the first application was filed within three years of the date of the final order passed in the first appeal of the High Court, no question of taking some step in aid of execution of the decree arises in the instant case because the second application for execution was filed within three years of the dismissal of the first application. Even assuming that the question of some step in aid of execution would arise, we think that the view taken by the learned Subordinate Judge is correct, though for different reasons. Both the courts below have referred to a Bench decision of this Court in the case of Mt. Prabhawati Kuar Vs. Phulmani Bibi, . In that case the final decree was passed on the 31st August, 1919 and the first execution was started on the 1st August, 1921. The decree holder was directed by the executing court on the 5th January, 1922, to file written processes and indentifier''s affidavit as to service of notice under Order 21, Rule 22 of the CPC by the 12th January. The affidavit was filed, but the written processes were not filed on this date and the execution case was dismissed for default. Then a second execution case was filed on the 2nd January, 1925. The decree holder relied on the filing of the identifier''s affidavit as step in aid of execution within three years prior to the 2nd January, 1925. It was held that the mere filing of the affidavit did not, in the circumstances of the case, amount to an application to the court to take a step in aid of execution, and, therefore, the second application for execution was time barred. The learned Subordinate Judge distinguished this decision on facts, holding that the filing of the requisites for notice in the first execution case was a step in aid of execution. On the other hand, the learned Additional District Judge took the view that the failure on the part of the decree holder to file the necessary requisites, as directed by the court in the first execution case on the 26th May, 1960, and subsequent dates did not amount to any application to the court to take some step in aid of execution. It appears that Clause (5) of Article 182 of the Limitation Act of 1908 was amended by Act 9 of 1927 which came into force on the 1st January, 1928. Before this amendment Clause (5) ran thus:

Where the application next hereinafter mentioned has been made the date of applying in accordance with law to the proper court for execution, or to take some step in aid of execution of the decree or order.

After the amendment, the clause reads thus:

Where the application next hereinafter mentioned has been made, the date of the final order passed on the application made in accordance with law to the proper court for execution or to take some step in aid of execution of the decree or order.

It will be noticed that the distinction between the two is obvious. It will be further noticed that, before the amendment of 1927, the period of three years was to be counted from the date of the application for execution or to take step in aid of the execution, but after the amendment the period of three years is to be counted from the date of the final order passed on an application for execution or on application made to take some step in aid of execution. In the case of Mt. Prabhawati Kuar Vs. Phulmani Bibi, , Clause (5) of Article 182, as it stood prior to amendment of 1927, was applicable, while in the instant case Clause (5), as it was in force after the amendment, is applicable, and therefore, the decision in Mt. Prabhawati Kuar Vs. Phulmani Bibi, is clearly distinguishable and it does not apply to the facts of the present case. In the present case, therefore, the period of three years has to be counted from the date when the final order in the first execution case was passed, i.e. 14-4-60. The fact whether or not the decree-holder filed the requisites in compliance with the court''s order becomes immaterial, in view of the amendment made in 1927 to Clause (5) of Article 182. In the case of AIR 1943 98 (Privy Council) , it was held that it was clear both from the CPC itself and from the provisions of the Limitation Act, that the legislature contemplated that there might be a succession of application for execution; and, under Article 182(5) of the Limitation Act, the essential requirement is that the previous execution application to be effective must be one made in accordance with law", that is, in accordance with law relating to the execution of the decree, otherwise the date of the final order passed on it cannot constitute a fresh starting point of limitation. In that case the decree under execution was obtained on the 1st February, 1932, and the decree-holder applied for execution of the decree on the 27th June, 1932. The application for execution was registered by the court and the decree-holder was required to file copies of the mutation registers under Order 21, Rule 14 of the Civil Procedure Code. Time for filing the copies of the mutation register was extended by the executing court from time to time till the 5th July, 1932, when the court dismissed the execution application for default, as the decree holder was absent and the copies of the mutation register were not filed. The second application for execution was filed on the 23rd July 1935 and out of that application the appeal before the Privy Council arose. Their Lordships held that the period of three years for the second application for execution must be counted from the 5th November, 1932, the date of the final order on the previous application, and, therefore, the second application was not time barred. This decision of the Privy Council supports the view that in the instant case the period of three years has to be counted from 14-6-60. It is obvious from the foregoing discussions that no question of any further step in aid of execution can arise, when the first application for execution is filed in time in accordance with law and is dismissed for default and the second application is also filed within three years of the date of the dismissal of the first application.

In the result, the appeal is allowed with costs throughout and the order of the court of appeal below is set aside and that of the executing court, dismissing the petition of the judgment debtor u/s 47 of the Civil Procedure Code, is restored.